United States v. Parker , 288 F. App'x 94 ( 2008 )


Menu:
  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-4259
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    LEONARD O’BRIEN PARKER, a/k/a Leonard O’Brien Parris,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Bryson City. Lacy H. Thornburg,
    District Judge. (2:06-cr-00002)
    Submitted:   July 2, 2008                 Decided:   July 28, 2008
    Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North
    Carolina, for Appellant. Gretchen C. F. Shappert, United States
    Attorney, Charlotte, North Carolina; Don Gast, Assistant United
    States Attorney, Asheville, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Leonard O’Brien Parker appeals his convictions after
    being       found   guilty   of   two   counts   of   each   of    the   following:
    kidnaping in the commission of a bank robbery, in violation of 
    18 U.S.C. § 2113
    (e) (2000), possession of a firearm in furtherance of
    a crime of violence, in violation of 
    18 U.S.C. § 924
    (c)(1)(A)(ii)
    (2000), and possession of a firearm by a felon, in violation of 
    18 U.S.C. § 922
    (g)(1) (2000).1             Parker contends the district court’s
    denial of his request for additional expert assistance violated his
    Sixth       Amendment   right     to   present   a   complete     defense   and   his
    statutory right to appointment of an expert witness.                  While he was
    provided with a clinical psychologist, Dr. Peter Sansbury, Parker
    asserts his condition required an additional expert who specialized
    in pharmacology and could investigate whether he “suffered from
    psychosis from either the overdose or withdrawal from Paxil.”
    Parker contends that regardless of Dr. Sansbury’s competency in the
    field of psychology, he was unqualified to investigate Parker’s
    specific claims, as they “necessarily involve[d] questions which
    are medical in character, not psychological.” Finding no error, we
    affirm.
    1
    Parker was also found guilty of two counts of bank robbery by
    force or violence, in violation of 
    18 U.S.C. § 2113
    (a), and two
    counts of assault with a dangerous weapon during the commission of
    a bank robbery, in violation of 
    18 U.S.C. § 2213
    (d); however, the
    district court arrested judgment on those counts in order to avoid
    duplicative sentences.
    -2-
    An indigent criminal defendant has a constitutional right
    to the assistance of a psychiatrist once he “has made a preliminary
    showing that his sanity at the time of the offense is likely to be
    a significant factor at trial.”              Ake v. Oklahoma, 
    470 U.S. 68
    , 74
    (1985). However, a defendant does not have a “constitutional right
    to choose a psychiatrist of his personal liking or to receive funds
    to hire his own.”2           
    Id. at 83
    .      While an indigent defendant may
    request the district court to expend public funds for expert
    services to assist in the preparation of his defense, the defendant
    must       demonstrate     such   services    are     necessary      to   an   adequate
    defense.         18 U.S.C. § 3006A(e)(1) (2000).               A district court’s
    denial      of    a   defendant’s   request     for    funds    to    procure    expert
    services is reviewed for abuse of discretion.                        United States v.
    Hartsell, 
    127 F.3d 343
    , 349 (4th Cir. 1997).                   “To show reversible
    error in a district court’s refusal to appoint an expert [pursuant
    to 18 U.S.C. § 3006A(e)], a defendant must demonstrate that the
    court’s refusal was prejudicial to his defense.”                     United States v.
    Perrera, 
    842 F.2d 73
    , 77 (4th Cir. 1988).
    Despite   Parker’s   claim     that    he     was    entitled    to   a
    “medically trained psychiatrist,” he has failed to demonstrate that
    the district court’s prior appointment of an admittedly competent
    psychologist was statutorily or constitutionally deficient.                            As
    2
    The Supreme Court noted that a defendant’s constitutional
    right is limited to the provision of “one competent psychiatrist.”
    Ake, 
    470 U.S. at 78-79
    .
    -3-
    this court has noted, “the decision in Ake reflects primarily a
    concern with ensuring a defendant access to a psychiatrist or a
    psychologist,   not   with     guaranteeing    a     particular    substantive
    result.”    Wilson v. Greene, 
    155 F.3d 396
    , 401 (4th Cir. 1998)
    (emphasis added).     Accordingly, the district court’s provision of
    public funds for procurement of expert psychological services, and
    defense counsel’s decision to retain Dr. Sansbury, did not violate
    Parker’s due process rights, as there is no obligation under Ake
    that a defendant be provided with a psychiatrist rather than a
    psychologist.
    Furthermore,     Parker    has    not    demonstrated     that   an
    additional psychiatric expert was required under Ake or that his
    appointed psychologist was unqualified to evaluate his claims
    relating to Paxil.      See Page v. Lee, 
    337 F.3d 411
    , 417 (4th Cir.
    2003) (petitioner failed to provide any evidence his appointed
    experts fell below the standard of competency).                   While Parker
    contends that Dr. Sansbury was simply unable to provide the expert
    services his case required, there is no evidence in the record to
    support this allegation.        At the hearing on this matter, Parker
    repeatedly asserted that he needed a psychiatric expert with
    specific knowledge regarding Paxil; however, there was no evidence
    presented   regarding    Dr.   Sansbury’s     lack    of   qualifications    or
    inability to adequately address Parker’s claims.              See 
    id.
     at 420
    n.5 (“Even the simplest form of evidence, such as an affidavit on
    -4-
    this       point   from    either    expert,     from   trial    counsel,      or   from
    petitioner himself is absent from the record.”).
    Parker offered little more than conclusory assertions
    that a specialized expert who “knows about Paxil” was needed, and
    he failed to demonstrate that the psychological assistance provided
    by    Dr.    Sansbury      would    be   insufficient    to     prepare    a   defense
    regarding his sanity at the time of the offense.3                  See Caldwell v.
    Mississippi, 
    472 U.S. 320
    , 323 n.1 (1985) (no due process violation
    in denial of expert where petitioner “offered little more than
    undeveloped assertions that the requested assistance would be
    beneficial”); see also Ake, 
    470 U.S. at 82-83
     (defendant must make
    “threshold showing” for psychiatric expert).                  Dr. Sansbury was not
    called as a witness at trial, and there is no evidence or proffer
    in the record indicating what his testimony would have included in
    regard to Parker’s mental state or his use of Paxil.                  Accordingly,
    because there is no evidence in the record demonstrating that
    Parker’s appointed psychologist could not provide the assistance
    necessary to prepare an adequate defense, we find that Parker’s
    claim is without merit.
    Even assuming the existence of evidence indicating that
    Dr.    Sansbury      was     unqualified       to   properly     analyze       Parker’s
    3
    Additionally, Parker’s counsel contradicted almost all of his
    client’s contentions, as he stated that Dr. Sansbury was a
    “sufficient expert” for the case and that “asking for further
    experts would be frivolous and unwarranted.”
    -5-
    pharmacological claims, Parker has still failed to demonstrate that
    the   district   court’s   refusal      to   appoint   another     expert   was
    prejudicial to his defense, as his claims regarding Paxil were
    contradictory and unsupported by the testimony in this case.                See
    Perrera, 
    842 F.2d at 77
    .       At trial, Parker claimed he stopped
    taking his prescription a week before the robberies; however, this
    testimony contradicted Parker’s earlier assertions made in his
    motion to suppress, where he claimed that his statements to police
    were involuntary because the officers supplied him with cigarettes
    and   coffee   despite   knowing   he    was   on   both   Paxil    and   Soma.
    Furthermore, the FBI agent in charge of Parker’s interrogation
    testified that Parker stated, prior to his confession, that he was
    currently taking Paxil and that it would not affect his ability to
    understand his rights.      Finally, Parker’s ex-wife testified that
    she provided him with his medication every day, and that while she
    did not always see him take his daily Paxil pill, Parker never told
    her that he had stopped taking his prescription.              Therefore, in
    light of the lack of evidentiary support for Parker’s contentions
    regarding his use of Paxil, we find the district court did not
    abuse its discretion in denying the motion for additional expert
    services.
    Accordingly, we affirm Parker’s convictions. We dispense
    with oral argument because the facts and legal contentions are
    -6-
    adequately presented in the materials before the court and argument
    would not aid the decisional process.
    AFFIRMED
    -7-